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[2011] ZAFSHC 46
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Godla v S (A98/2009) [2011] ZAFSHC 46 (3 March 2011)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal No. : A98/2009
In
the appeal between:
MATTHEWS
MOTHUSI GODLA
…...............................................
Appellant
and
THE STATE
…...........................................................................
Respondent
CORAM:
MOCUMIE, J
et
KUBUSHI, AJ
_______________________________________________________
JUDGMENT
BY:
MOCUMIE, J
_______________________________________________________
DELIVERED ON:
3
MARCH 2011
APPEAL: JUDGMENT
_______________________________________________________
MOCUMIE, J
[1]
The Regional Court, Koffiefontein convicted the appellant on two
counts of theft on 28 January 2009. The first was a count of
theft of
a motor vehicle to wit an Isuzu truck and the second of theft of
copper cable. On the same day he was sentenced to six
(6) years
imprisonment. Both counts were taken as one for purposes of sentence.
He now appeals against the conviction in both counts
with leave of
the court
a quo
which
was granted on 24 April 2009.
[2]
The evidence adduced at the trial established that on 10 April 2008
at 22h00 the complainant, Mr Nicolas Bason (
“Bason”
),
left the keys of his Isuzu truck in the ignition hole and went to
sleep. The truck was parked next to the store room on his premises.
In the morning of 11 April 2008 the truck was missing. Upon further
investigation he discovered that the copper cable which was
in the
store room was also missing. He reported the theft to the police.
[3]
Further evidence established that Bason then followed the tracks of
the truck to a neighbouring farm. He went into a store room
of the
farm concerned and saw three people cleaning copper cable. When they
saw him the three stood up and fled. He chased after
one of them,
caught him and brought him back to the store room. That person was
the appellant. The police arrived at the scene
and the appellant was
arrested.
[4]
There was no direct evidence linking the appellant to the commission
of the offences. According to the judgment, the trial court
convicted
the appellant on the basis of the following circumstantial evidence:
4.1
The appellant fled from the store room of the neighbouring farm where
three people were found in possession of copper cable
stolen from the
complainant’s premises;
4.2
The appellant was one of the three people that fled; and
4.3
The complainant’s truck was found 15 metres away from the farm
concerned.
[5]
In his evidence during the trial appellant denied that he was ever
part of the group that stole the truck and the copper cable.
According to him he was on the farm concerned on invitation of one
Bishop who is a co-owner of that farm. He was arrested by the
complainant doing nothing wrong except waiting for Bishop to come
back. The trial court however rejected his version as false and
furnished reasons for its conclusion.
[6]
Advocate Smith conceded that in so far as count 2 is concerned the
appellant’s version is not reasonably possibly true.
However in
respect of count 1 she contended that the conclusion the trial court
drew was not the only conclusion that could be
drawn from the
circumstances. She submitted that there was no
alliunde
evidence that supported the conclusion that the appellant was the
person that stole the truck or was with the person(s) who stole
the
truck at the time it was stolen.
[7]
She argued that the truck could have been stolen by Bishop, who was
well known to the police, whom the appellant said had brought
him to
the farm.
[8]
The correct approach to circumstantial evidence has been stated in
numerous cases by the Appellate Division. In the seminal
decision of
R v BLOM
1939 AD 188
at 202 – 203 the Court
stated as follows:
“
(1)
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, the inference cannot be drawn.
(2) The proved
facts should be such that they exclude every reasonable inference
from them save the one sought to be drawn. If they
do not exclude
other reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct.”
[9]
In principle the court which has to deal with circumstantial evidence
must not only look at the evidence of the State or of
the accused in
isolation but it must consider the cumulative effect of the
circumstantial evidence in the case. See
NXUMALO v S
[2009] JOL 24273
(SCA).
[10]
In this case the fact that the complainant‘s truck and copper
cable were stolen between 10 and 11 April 2008 from his
farm; that
the copper cable was discovered on 11 April 2008 at a neighbouring
farm; that the appellant was found on the premises
of the
neighbouring farm on 11 April 2011;and that the appellant ran away
together with the two people that the complainant found
cleaning
copper cable inside the store room of the neighbouring farm ; that
the complainant’s truck was found 15 metres away
from this
neighbouring farm did not conclusively point to the appellant’s
guilt beyond reasonable doubt in respect of the
theft of the truck.
As correctly submitted by Advocate Smith there is a possibility that
any other person including Bishop or those
that fled or others not
found at the scene could have stolen the truck and abandoned it for
unknown reasons. Mr Chalale, for the
respondent, was constrained to
concede that the conclusion drawn by the trial court was indeed not
the only reasonable conclusion
that could be drawn from the
prevailing circumstances.
[11]
I am satisfied that the trial court misdirected itself in so far as
count 1 is concerned and that the appeal on it ought to
succeed.
[12]
Lastly although the trial court imposed six years imprisonment
cumulatively in respect of both counts I am of the view that
because
of the large quantity of the copper cable stolen and the seriousness
of the offence in count 2, six years imprisonment
is sufficient.
[13]
In the circumstances I make the following order:
ORDER:
The
appeal on the first count is upheld.
The
appeal on the second count is dismissed and the conviction is
confirmed.
The
sentence as a whole in respect of both counts is set aside and
substituted by the following:
“
Count
2: The accused is sentenced to 6(six) years imprisonment.”
________________
B.
C. MOCUMIE, J
I concur.
_________________
E. M. KUBUSHI, AJ
On behalf of the
appellant: Adv. R.J. Nkhahle
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv. S. Chalale
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
BCM/sp